1. BASHARAT AHMAD SHAIKH, J.--Respondents Ghulam Din, Sain and Mst. Parveen Akhtar, who are the legal representatives of. Said Muhammad, moved an application before the learned Custodian of Evacuee Property wherein it was stated that Muhammad Shafi Khan and Muhammad Yusuf Khan sons of Hussain Khan, the present appellants, were trying to obtain proprietary rights of the disputed evacuee land on the basis of a forged allotment chit and that the file prepared on their initiation had reached the Custodian's office. It was prayed that the proprietary rights may not be granted to Muhammad Shafi Khan and Muhammad Yusuf Khan. This application was rejected in toto on 22-3-1990. Thereupon a review petition was filed which was decided on 3-5-1991. This time the learned Custodian amended his predecessor's order and ordered that proprietary rights of the disputed land will be jointly granted to both the contesting parties. The present respondents were found entitled to two-third share while the remaining one-third share was to go to the appellants.
2. This was done in pursuance of the recommendation made by the Rehabilitation Commissioner in the entitlement certificate issued by him. Being still dissatisfied respondents Ghulam Din etc. filed a writ petition in the High Court. A learned Single Judge accepted the petition and quashed both the aforementioned orders passed by the learned Custodian. It was found by the High Court that only the respondents were genuine allottees of the disputed land. Hence this appeal by leave of this Court.
3. The claim of Ghulam Din etc. in their writ petition filed on 11-8-1991 was that the evacuee land under Survey No,2368 measuring 16 Kanals and 2 Marlas and other survey numbers was allotted to their predecessor-in-interest Said Muhammad on 28-4-1952 on the basis of being a refugee. It was submitted that Said Muhammad remained in possession of the land allotted to him till his death in 1989 and after that the petitioners were in possession thereof except that the respondents Muhammad Shari Khan and Muhammad Yusuf Khan, sons of Hussain Khan, had taken over forcible possession of land under Survey No,2368. They claimed that the genuine allotment chit is the one issued on 28-4-1952 whereby disputed land was allotted to Said Muhammad son of Sheroo.
4. Certifed (photo) copy of the chit was filed with the writ petition. Another order passed on 25-8-1952 was also placed on the file showing that this allotment was subsequently again approved by the Revenue Assistant Poonch on the recommendation of Tehsildar. Copies of extracts from register of allotments and Khasra-girdawaris pertaining to years 1988 to 1990 were also filed. Also placed on the file was a photostat copy of the allotment chit on which reliance had been placed by present appellants Muhammad Shafi etc. In this chit the names of allottees were shown as Said Muhammad son of Sheroo, Kaloo son of Noor Din and Hussain Khan son of Kaloo Khan. About this chit it was alleged that it was forged; it was only temporary just for the year 1951; and also that it did not contain any khasra number or any other description of the land by which it could be identified.
5. In their written statement Muhammad Shafi Khan and Muhammad Yusuf Khan controverted the contents of the writ petition and claimed that the allotment chit of 15-5-1951 was genuine while the chit produced by the other party bearing the date 28-4-1952 was fabricated. It was asserted that land comprising Khasra Nos. 2336, 2337, 2609 min. 2612, 2303, 2333, 4326, 2610 and 2368 measuring 66 Kanals 9 Marlas was jointly allotted to Hussain Khan, their father, as well as Said Muhammad, the predecessor-in-interest of writ petitioners in proportion of 1/3 and 2/3 vide the allotment chit of 15-5-1951. They claimed continuous possession and also that they had constructed a house in Khasra No,2368. The allegation of forcible possession was vehemently denied. Five documents were attached with the written statement. One is copy of the allotment chit of 15-5-1951 (Annex. 'A') while the second (Annexure B) is copy of the reports of some rehabilitation officials made, in the. year 1987, probably during the preparation of the entitlement certificate. Annexures "C" and "D" are Khasra-girdawaris relating to Khasra No,2368 for the years 1985 to 1991. Annexure `Eis the recommendation/entitlement certificate issued by the Rehabilitation Commissioner which is under dispute. All these documents are unattested. No affidavit was filed with the written statement although the writ petition was accompanied by an affidavit.. Certain documents were placed on the record on behalf of Muhammad Shafi and others, who were respondents before the High Court, after the hearing of the arguments when the judgment had been reserved. These documents were taken into consideration by the learned Judge who heard the case in the High Court in the interest of justice. One of them is certified copy of allotment chit of 15-5-1951. The other documents will be referred to at the proper place.
6. The learned Judge accepted the writ petition and set aside the orders passed by the Custodian on 22-3-1990 and 3-5-1991. It was held by him that petitioners before him, Ghulam Din etc. were the genuine allottees. The learned Judge based his conclusion on the following grounds--
(i) the allotment in favour of Said Muhammad made on 28-4-1952 is duly entered in the register of allotments maintained by the Custodian Department; it is also incorporated in the Revenue Record which is on the file with the exception that Khasra No,2368 measuring 16 Kanals and 2 Marlas is shown in occupation of Muhammad Shari and others w.e.f, the year 1989;
(ii) the allotment chit produced by the respondents which purportedly shows Hussain Khan as co- allottee does not find mention in any of the Revenue Records except the report of Naib-Tehsildar and the recommendation of the Rehabilitation Commissioner;
(iii) the entries in respect of Hussain Khan appear to be forged and subsequently entered;
(iv) the allotment chit relied upon by the heirs of Hussain Khan carries the date of 15th of May 1951 but there are ceratin reports in support of allotment made on 20-11-1951 and 21-11-1951 which means that they were made after the date of allotment;
(v) that the allotment chit of 1951 was only for one year and it ceased to be valid after that; and
(vi) provisions of Bait-ul-Mal Property Act, 1950 or the Protection of Evacuee Property Act, 1950 (of which the relevant provisions are duly reproduced in the judgment under appeal), show that at the relevant time, namely, 15-5-1951 only a refugee was entitled to allotment and a local could not get allotment of evanced land.
7. Arguing on behalf of the appellants, Sardar Rafique Muhammad Khan vehemently contended that learned Judge in the High Court wrongly vacated the findings of fact recorded by the learned Custodian of Evacuee Property who had exclusive jurisdiction under the relevant law to decide the questions involved in the matter. He contended that the findings of fact of such functionaries are sacrosanct and cannot be disturbed by the High. Court while exercising writ jurisdiction. He particularly objected to the finding recorded in the judgment under appeal that the name of Hussain Khan in the allotment chit of 15-5-1951 is a "brazen fabrication". The sanctity of findings of fact of Tribunals or functionaries, of exclusive jurisdiction is undisputed but we are unable to agree with the proposition that such findings cannot be disturbed at all. The correct state of law is that a finding of fact cannot be disturbed in writ jurisdiction except when the Court comes to the conclusion that it is based on no evidence as held in Muhammad Aslam v. Atta Muhammad 1969 SCM R 16 or, as laid down in N.M.Khan v. C.S. & R.C. 1970 SCM R 158, where it is based on erroneous deduction from facts which manifestly could not support such an inference or as held in Chief Election Commissioner v. Ch. Abdul Majid PLD 1986 SC (AJ&K) 120, if it is patently wrong, is based on inadmissible evidence or there is gross non-reading or misreading of evidence. However, we agree with the learned counsel that the learned Judge in the High Court has wrongly recorded the finding that Hussain Khan's name was inserted by fabrication . No evidence was on the file of the. High Court on the question of fabrication. The High Court did not itself record any finding on this point.
8. How then such a finding could be recorded, we are unable to see. Therefore, we vacate this finding.
9. However, the judgment under appeal contains other reasons for the conclusion that the allotment chit under reference has been wrongly acted upon by the learned Custodian and it was illegal to grant proprietary rights to the legal representatives of Hussain Khan. After noting the facts and examining different laws relating to evacuee property with the help of the learned counsel for the parties, Sardar Rafique Mahmood Khan and Syed Nazir Hussain Shah Kazmi, we have reached the conclusion that some of these reasons are weighty. We have also reached the conclusion that the writ petition has been rightly accepted. We assume that the allotment chit of 15-5-1951 in the shape as it exits (containing names of three allottees) is a genuine document. But for the reasons we would be presently recording we find that it is a document which has no legal value. This chit does not contain the numbers of the land which was purported to have been allotted. All that it shows is that the allotted land is in Nar Sher Ali Khan and its total area is 66 Kanals and 5 Marlas, out of which 35 Kanals and 16 Marlas are irrigated while the rest is unirrigated land. It is incorporated in it that it has been allotted to three persons Said Muhammad son of Sheroo, Kaloo son of Noor Din, Hussain Khan 'son of Kaloo Khan but does not say how the distribution would take place and in what ratio. Previous residence of Said Muhammad is Degwar Maldayalan, of Kaloo Poonch City while Hussain Khan is from Nar, which means he was a local. It is stated in the allotment chit that Said Muhammad and Kaloo are being allotted land on the basis that they are refugees while the land to Hussain Khan is being allotted as a measure of compensation for road. It is entered in it that the allotment is only for the year 1951. Among the documents filed after the hearing of the writ petition, as mentioned above, is a certified copy of an application moved by Said Muhammad praying, for . allotment of evacuee land. When this application was processed it was noted by the concerned official that land belonging to Hussain Khan son of Kaloo Khan had come under road and in this connection he was given evacuee land. Another document also filed with the document just mentioned is an extract from proceedings of the file relating to proprietary rights initiated by Muhammad Shall Khan etc. It is also noted therein that the evacuee land was given to Hussain Khan because his land had come under road. In the provisions of the relevant laws relating to evacuee property this is not a ground on which an allotment could he made. Thus the purpose for which the allotment was made was not recognised by law and the allotment was illegal. Most significant factor which totally destroys the legal value of the allotment chit is that it was valid only for one year and the allotment made under it terminated by efflux of time on 31st of December 1951.
10. These factors show that the allotment chit was not only unlawful but non-existent. According to C section 18-A of the Administration of Evacuee Property Act, 1957, it is only an allottee on whom proprietary rights can be conferred. Since allotment chit was non-existent there was no allottee within the meaning of Section 18-A who could be granted proprietary rights. This section also provides that proprietary rights could only be granted if the allottee was entitled to the allotment of the evacuee land. Since the allotment had been made for a purpose not recognised by law Hussain Khan .could not be found to be entitled to the proprietary rights. This furnishes an independent reason for refusing the grant of proprietary rights.
11. When learned Custodian of Evacuee Property passed his two orders impugned in the writ petition on 22-3-1990 and 3-5-1991 the law on the subject as contained in subsection (2) of section 18-A mentioned above was as follows:-- "(2) The proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to an allottee after satisfying himself about the genuineness of the claim and realising from such allottee the cost and dues.................".
12. The provision shows that when entitlement certificate reached the learned Custodian he was hound to satisfy himself about the genuineness of the claim. The respondents ( Ghulam Din etc. brought to his notice the legal lacuna of the entitlement certificate, by moving an application and subsequently bythe review petition. However, the learned Custodian failed to correctly appreciate the factual and legal features of the case and passed orders which were illegal.
13. The learned Custodian also failed to note the legal provision that in the year P)51, when the allotment chit accepted by him as valid was issued, there was no provision in any law for allotment of evacuee land and the allotment chit; despite its title and contents, was not an allotment but a lease. It was in 1952 that with the enactment of Azad Kashmir. (Rehabilitation) Ordinance provision for allotment was made for the first time. Prior to that the laws in force in respect of evacuee property were Abandoned Lands Management Act, 1949, Baitulmal Property Act, 1950 and Protection of Evacuee Property Act, 1950. The Abandoned Lands. Management Act, 1949 is the law which shows the actual position of this allotment chit. In section 3 of this Act it was provided as follows:-- "All leases for cultivation of abandoned land and management of other abandoned immovable property shall be granted on a cash rent to be fixed by the Deputy Commissioner of the district in which such property is situtate on such terms and for such period as may be thought fit by him." `Abandoned landis defined in section 2 as 'land abandoned by non-Muslims in the liberated territory under the administration of the Azad Kashmir Government'. There is no provision in his Act for allotment of evacuee land. In Baitulmal Property Act, 1950 it is provided in section 4 that the Tehsildar, subject to the control of Deputy Commissioner, shall maintain strict control over the abandoned land for the purposes of Abandoned Lands Management Act of 1949 and to see that such property is let out to proper persons. Section 7 provides that while granting leases of abandoned lands the dependants of Shaheeds, dependants of Mujahids and refugees would be granted leases and if no tenants are available from these categories then it may be let out to suitable persons of the locality. There is no provision for allotment of evacuee land in this Act also Another connected law was Azad Kashmir Protection of Evacuee Property Act, 1950. This Act provides for the appointment of a Custodian and for the vesting of evacuee property in the Custodian. Subsection (1) of section 5 lays down that whenever any Rehabilitation authority requires any evacuee property for the purposes of social and economic rehabilitation of refugees under any law for the time being in force such authority shall send a written intimation in respect of particulars of the property to the Custodian. Subsection (ii) of the same was to the following effect:- "(ii) Persons who have been allotted any evacuee property by way of lease, by any Rehabilitation Authority, without compliance with the procedure laid down in subsection (i) shall be deemed to be tenants or lessees on such terms and conditions as may be agreed upon by the Custodian and the Rehabilitation Authority concerned and the said authority shall be deemed to be a duly authorised agent of the Custodian for this purpose. It shall be the duty of such Rehabilitation Authority to furnish all available particulars of the allotted property and of the allottee, to the Custodian immediately or as soon as may be after the allotment."
14. Although in subsection (i) the Rehabilitation Authority was mentioned and the law for rehabilitation of refugees was also mentioned but no such law was in existence at that time nor was Rehabilitation Authority created when this Act was passed. This law appears to have been enacted as a preparation for the scheme of allotment which was subsequently provided for in the Rehabilitation Ordinance, 1952. In subsection (ii) reproduced above reference is made to "allotment by way of lease". This provision clearly shows that prior to the enactment of Rehabilitation Act in 1952 the leases of abandoned lands given under section 3 of the Abandoned Land Management Act, were called 'allotments'. Thus the cumulative effect of the laws existing before 1952 was that there were leases of evaucee property which were for year to year and rent had to be paid by the lessees and that such leases were described as allotments. It is also clear that such leases could be given not only to refugees but also to the dependants of Shaheeds, Mujahids and Refugees and, if the persons of these categories were not.available, then even to other persons. The conclusion, therefore, is that leases made before the enactment of the Azad Kashmir (Rehabilitation)
15. Ordinance, 1952, although called allotments, were in fact leases and not allotments in the sense of the word as used in the aforementioned Rehabilitation Ordinance, 1952 and the Administration of Evacuee Property Act, 1957. Thus, the allotment chit of 15-5-1951 in fact created yearly lease.
16. Therefore, the person who held such a lease was not an "allottee" within the meaning of section 18- A of the aforesaid Act of 1975. Consequently proprietary rights could not be granted to him. The two orders of the learned Custodian are thus clearly contrary to law and are unsustainable.
17. Let us now turn to the other allotment chit. Its date is 28-4-1952. It shows that land measuring 55 Kanals and 12 Marlas (not 66 Kanals 5 Marlas as incorporated in the other chit) comprising six Khasras mentioned therein was allotted to Said Muhammad the predecessor-in-interest of the present respondents Ghulam Din etc. This chit is also for one year, namely, year 1952. (In the judgment under appeal it has been observed, due to oversight, that this chit is not for a specified period). This chit on the face of it also appears to be a lease. However, the learned counsel for the respondents argued that it was in fact a proper allotment without limit of time. He relied on the order subesquently recorded on 18-8-1952 to which we have already referred earlier. It is contended by the learned counsel that by order of 18-8-1952 (certified copy of which is on the file) the Rehabilitation Authorities appoved the allotment by lease as a proper allotment order under the Azad Kashmir (Rehabilitation) Ordinance, 1952 which, as he claimed, had been enacted before 18-8-1952, the date on which the allotment was approved. He also mentioned that all the allotments by way of lease subsisting in favour of refugees upon the coming into force of the Azad Kashimr (Rehabilitation) Ordinance, 1952 were approved as allotments under the said Ordinance.
18. According to the learned counsel the fact that this allotment is duly recorded in the allotment register as well the Khasra-Girdawaris of all the subsequent years also proves his contention. Syed Nazir Hussain Shah Kazmi, therefore, submitted that the High Court had rightly held the allotment chit of 28-4-1952 as a valid allotment order in favour of Said Muhammad entitling his legal representatives to get the proprietary rights of the land in dispute.
19. We regret that we cannot uphold the finding of the High Court in respect of allotment chit of 28-4- 1952 because while recording this finding the High Court seems to have travelled beyond the scope of the writ petition of which it was seized. The circumstances in which the petition was filed have already been enumerated and need not be repeated. In short the writ arose out of the proceedings initiated by the present appellants for grant of proprietary rights. The present respondents objected to it by moving an application, which was rejected and then they moved a review petition which was partly accepted. The allotment chit of 1951 had been challenged by the present ,respondents.
20. Their only request before the learned Custodian was that proprietary rights may not be granted to Muhammad Shafi Khan etc. because the allotment chit of 1951 was forged. They did not present the allotment chit of 1952 before the learned Custodian who, therefore, had no occasion to adjudicate upon its validity. This is as it should be. The Custodian of Evacuee property cannot adjudicate upon the claim for obtaining proprietary rights on_ an application directly presented to him. A person seeking proprietary rights has to make an application to the Rehabilitation Commissioner and first an entitlement certificate from him. It is only then that the Custodian can take cognizance of the matter. No such situation obtains in the present case. We are not aware whether Ghulam Din etc. have filed an application for grant of proprietary rights and if so what proceedings have been taken on it. The High Court can only examine the claim of Ghulam Din etc. if they approach it after exhausting the available remedies. The High Court has no jurisdiction to directly adjudicate any such matter. The allotment chit of 1952 was not before the learned Custodian. There was, therefore, no legal warrant for any verdict on it by the High Court. This question, therefore, has to be left open to be decided by the concerned authorities in a properly constituted proceedings.
21. As a consequence of the foregoing, the relief granted by the High Court has to be modified. The relief granted by the High Court was in the following terms:-- "In view of the above, the writ petition is accepted with costs, and the orders of Custodain dated 22-3-1990 and 3-5-1991 are quashed. Petitioners are found as genuine allottees and are accordingly entitled to the logical and legal consequences of allotment."
22. (Underlining is ours)
23. The relief granted in the last sentence which has been underlined by us is recalled. Rest of the relief as reproduced above is affirmed.